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Finding a solution for public records and social media in law enforcement

When Deputy Mark Gregory set out to launch a social media presence for the Spokane County Sheriff’s Office, he knew he was bound to face a few obstacles. Like any law enforcement agency posting communications on sites such as Facebook and Twitter, he would need to justify the usage of each site to his internal team, and create a plan for how citizen’s comments and replies were managed. He would need internal and external social media policies to address issues such as employee use, comment moderation, and the need to maintain compliance with government requirements such as the Washington Public Records Act. Regardless, Mark knew that it was essential to move forward. As he explained, “It’s a very important tool for law enforcement agencies. We must be able to openly communicate with the citizens we serve and social media is one of the most effective ways we can do that.”

Mark’s efforts enabled Spokane County Sheriff’s Office to focus their social media presence in 2011. While Mark was able to address most of the issues by establishing policy and process, the public records issue, in particular, posed a unique challenge. “I knew that public disclosure was an issue that was going to come up, and that the record keeping was not something I could do on my own. I contacted our IT department for help to find a way to capture the communications as we opened up these channels to our citizens,” he said.

The IT staff at Spokane County conducted an evaluation of potential solutions and ultimately selected ArchiveSocial (full disclosure: I am the CEO) for the capture and management of their social media in accordance with the Washington Public Records Act. Mark describes the experience by saying, “Given social media data is hosted on third-party servers outside of our control, we knew we needed to find a social media archiving solution that could be easily searched. The problem is there was a lot of confusion on what to look for and where to find it.”

The confusion the Spokane County Sheriff’s Office faced back in 2011-12 is still a challenge for most law enforcement agencies attempting to satisfy public records requirements around social media.

Here are some of the questions law enforcement and government agencies need to consider:

First and foremost: Is social media a public record?

Every state has its own public records law equivalent to the Washington Public Records Act. These laws were written in a way that characterizes government communication as public record “regardless of physical form” (and often times, using this exact phrase). In other words, it doesn’t matter if you are communicating over email, or a tweet — a government communication is a government communication. States such as Washington, Texas, Florida, North Carolina, Oregon, Ohio, Virginia, California, and Arizona have already issued guidance confirming the application of public records law to social media.

Does social media create records worth retaining?

A caveat with public records is that it is generally not necessary to retain records that are perceived to contain little or no long-term value. For years it was assumed that social media content would simply fall under such a categorization. Obviously, this is no longer true, and particularly not in the case of law enforcement usage of social media. Recent high profile incidents such as Hurricane Sandy and the Boston Bombings have demonstrated how social media can actually become the most important and effective channel for disseminating information during times of crises. Furthermore, it is important to recognize that citizen communications to your agency – in the form of comments, replies, and private messages – are just as much public record as your own postings.

What about retention schedules? Do we need to retain if no schedule exists for social media?

Some agencies have avoided retention of social media due to the perceived lack of an appropriate retention schedule. Unfortunately, they should be doing the opposite; most laws dictate that records that are not scheduled must be retained forever. There is also, technically, no need for a “social media retention schedule”. According to most laws, retention schedules should be applied based on the content of the communication, not the physical form. In other words, a citizen compliant should be scheduled as a compliant whether it was received as a physical letter, a Facebook comment, or any other written means.

Do Facebook and Twitter already store the data in case we need it?

A common misconception is that social networks such as Facebook and Twitter will maintain the records that agencies might need in the event of a public records request. Unfortunately, the social networks do not actually provide any guarantee that data will be retained in accordance with government requirements. The moment a post or comment is deleted, it is lost forever. The potential for deletion is specifically a concern in regards to communications received by citizens, because a citizen can delete that communication at any time and it will no longer be accessible. Some of the networks provide a “your archive” or “download your data” feature, but these capabilities are misleading. The data provided by these features does not contain deleted content, communications received by citizens, or private messages.

I was told to take screenshots and use copy & paste. Is this sufficient?

Several years ago, prior to the development of automated social media archiving technology, agencies were forced to resort to “do-it-yourself” procedures such as screenshots and copy & paste. Many agencies continue to follow these practices but are struggling with keeping up due to human-resource constraints. Furthermore, there is a lack of confidence in these records because they are easy to falsify and can be disputed in a legal situation. A more scalable, trustworthy, and cost-efficient approach is to use automated technology, as Spokane County has chosen to do.

What else should I consider?

Ultimately, satisfying public records requirements is not just about data storage. It is about ensuring long-term government transparency, and being able to produce records when requested. Any approach to social media archiving must take into account the potential uses cases and workflows involving this data. Can I easily search for and retrieve exactly the records comprising a complete social media conversation? In what data formats can I transfer the records to the requestor? Are the records authentic, and do they provide the full context of the social media conversation? Will the records uphold in court?

These are a lot of questions to consider, but as Mark Gregory astutely recognized, not questions that can be ignored. “The issue seemed complicated at first, but our IT department did a great job procuring a simple and effective solution. Knowing our social media is archived, and we’re in compliance, allows us to focus all of our social media efforts on the conversation with our community.”

Anil Chawla is the Founder & CEO of ArchiveSocial, a company that specializes in archiving social media in order to satisfy open records requirements. ArchiveSocial works with public entities ranging from small towns and fire departments, to prominent entities such as the City of Austin, State of North Carolina, and US National Archives. ArchiveSocial recently joined forces with Code for America to help promote the impact of social media in open government. Anil often writes on the topics of social media technology, record retention, and strategies for overcoming legal & policy barriers.



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